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Clinic Access and Anti-Stalking Act of 1999

March 1, 2000

Jennifer DeCarli

A change in New York's law of great importance to domestic violence advocates is the recent passage of the "Clinic Access and Anti-Stalking Act of 1999." Stalking type behavior was previously covered under New York's aggravated harassment and harassment 1st statutes. This new stalking law expands upon and makes illegal conduct that was previously not covered under these statutes. The stalking law was effective as of December 1, 1999. Unfortunately, the announcement and publication of this new law have been less than satisfactory. For example, in my previous position, I worked frequently with law enforcement. Because many law enforcement agencies are not yet fully aware of this new law, it is crucial that advocates help publicize the legislation widely.

With regard to the substance of the stalking law and how it will affect advocates' work, there are four degrees of stalking [1] and it is a family offense - meaning Family Court and Criminal Court have concurrent jurisdiction over this offense [2]. Although domestic violence advocates were thrilled to finally have a stalking law in New York, it is a complicated statute. For example, defendants can be charged with a higher degree of stalking if they have previously been convicted of a "predicate crime" against the current victim or an immediate family member of the victim or if they have been previously convicted of stalking. Also, stalking includes behavior directed at individuals, not previously covered under other family offenses. For example, if a respondent/defendant causes material harm to the physical health, safety or welfare of an immediate family member of the victim or a third party acquaintance of the victim, the victim can allege stalking 4th. Material harm is not defined in the statute and as a result will have to be decided through case law.

Due to the complicated provisions in this new law, the main provisions of each degree of stalking, are summarized below.


[1] See Penal Law Section 120.45, 120.50, 120.55 and 120.60.

[2] See Criminal Procedure Law Section 530.11(1) and Family Court Act Section 812(1).


Summary of Stalking Statute

1.  STALKING 4th - (PL 120.45) (B Misdemeanor)

  • intent
  • no legitimate purpose
  • course of conduct - directed at someone
  • knew or should've known it would cause:

a.  reasonable fear of material harm to the physical health, safety or property of

  • that person,
  • an immediate family member of that person or
  • a third party acquaintance of that person

OR

b.  material harm to the mental or emotional health by following, telephoning or initiating communication or contact with:

  • that person,
  • an immediate family member of that person

OR

  • a third party acquaintance of that person
  • AND they were clearly informed to stop this conduct

OR

c.  reasonable fear that employment, business or career is threatened because he/she is appearing, telephoning or initiating contact at the person's job AND they were clearly told to stop this conduct

2.  STALKING 3RD (PL 120.50) (A Misdemeanor)

a.  commits stalking 4th against 3 or more people, in 3 or more separate transactions for which the person has not been previously convicted

OR

b.  commits stalking 4th AND previously convicted within last 10 years of a predicate crime against the victim or an immediate family member of the victim of the present offense

OR

c.  with intent to harass, annoy or alarm someone - engages in course of conduct likely to cause reasonable fear of

  • physical injury
  • serious physical injury
  • commission of a sex offense against

OR

  • kidnapping, unlawful imprisonment or death to such person or an immediate family member of such person

OR

d.  commits Stalking 4th and has already been convicted of Stalking 4th previously

3.  STALKING 2ND (PL 120.55) (E Felony)

a.  commits stalking 3rd AND in the course of displays or possesses or threatens the use of any type of firearm or deadly and/or dangerous instrument (see statute for the lengthy list of the included firearms and weapons)

OR

b.  commits stalking 3rd AND within the last 5 years has been convicted of a specified predicate crime against the victim or an immediate family member of the present offense

OR

c.  commits stalking 4th AND has been previously convicted of stalking 3rd

OR

d.  is 21 or older and repeatedly follows someone under age 14 OR engages in a course of conduct OR repeatedly commits acts intending or attempting to place the person under age 14 in reasonable fear of physical injury, serious physical injury or death

4.  STALKING 1ST (PL 120.60) (D Felony)

a.  Commits stalking 3rd and in the course of:

  • intentionally or recklessly causes physical injury to such person

OR

  • commits a Class A misdemeanor defined in Article 130 of the Penal Law or a Class E felony defined in 130.25, 130.40, 130.85 or a Class D felony in 130.30 or 130.45

*Penal Law 120.40 - Definitions:

- Immediate family member is defined as: spouse, former spouse, parent, child, sibling, or any other person who regularly resides or has regularly resided in the household of a person.

- Predicate Crimes are defined as the following:

A.  A violent felony offense

B.  A crime defined in Section 130.20, 130.25, 130.30, 130.40, 130.45, 130.55, 130.60, 130.70, or 255.25;

C.  Assault 3rd, Menacing 2nd, Coercion 1st, Coercion 2nd, Aggravated Harassment 2nd, Harassment 1st, Menacing 3rd, Criminal Mischief 1st, 2nd, and 3rd, Criminal Tampering 1st, Arson 3rd and 4th , Criminal Contempt 1st, Endangering the Welfare of a Child, Stalking 2nd, 3rd, and 4th OR an offense in any other jurisdiction which includes all of the essential elements of any such crime for which a sentence to a term of imprisonment in excess of one year or a sentence of death was authorized and is authorized in this state irrespective of whether such sentence was imposed.

 





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